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The government shutdown: River rights being wrongfully denied

October 03, 2013
The government shutdown: River rights being wrongfully denied

Photograph by Carolyn Kaster 

The last few days of the government shut down have been a prime example of the serious legal problems associated with national public river access. Public rights to access rivers are being wrongfully denied. Just because politicians can’t settle on the nation’s funding does not mean accessing rivers—which are public passage ways—should be denied.

Many people have now been kept out from recreating on rivers that flow through national park lands. One particular tragedy—from this week and from the past several decades—has been the Grand Canyon. NPR reported yesterday about Scott Lee, a father and leader of a rafting group from Conway, New Hampshire. Mr. Lee had been trying to get a permit, via the lottery system, to float down the Grand Canyon for over 10 years. Not only that, but his group had to prepay the park system about $2,000 in fees. These restrictions are wrongful because our Congress has said that rivers will be “forever free,” “without any tax, impost, or duty therefor,”(1) and “shall be deemed to be and remain public highways.” (2)

After Scott and his group have spent over $30,000 on the trip and pulled his 13-year-old son out of school, a blockade and armed rangers are blocking him and his group of 15 people from putting in to raft down the river. All the group needs is simply to access the put-in (which is the only put-in for the Grand Canyon), and float down the river like people have been doing for thousands of years. The park rangers don’t have any responsibility once the group embarks and goes down the river. So, what is the justification for keeping the public out?

grand canyon blocked
Photo courtesy Ceiba Adventures

Unfortunately, Scott is one of many people this has happened to. The biggest issue with public river access is a lack of understanding the law our nation has already established. Park rangers are simply doing what they are told. All camping on the Grand Canyon is below the high water mark, and is therefore part of the bed and banks of the river itself, not part of the surrounding upland. Keeping the public from accessing rivers just because politicians can’t get their act together in Washington is incredibly wrongful and unjustified.

So what can you and I do to solve this crisis of public rights on rivers being denied? How can we prevent these tragedies from happening? By educating ourselves and each other on what the law says, and convincing the powers that be to apply it. Specifically, the river permit system is a topic NOR will be addressing in the coming months. We will be working to eliminate the unlawful aspects of the permit systems at the Grand Canyon and other rivers around the US. The government should not be blocking public access to rivers. NOR is the organization that will be navigating this issue, and your memberships and donations help to solve this river access denial crisis.

May this be an eye-opening event for everyone about the incredible need for public rights on rivers—to kayak, raft, canoe, fish, fowl, and recreate—to be recognized now and in the future.

_______________________

For the link to the story covered by NPR, click here

Footnotes:
(1) “Forever free:” Northwest Ordinance of 1787, reenacted Aug. 7, 1789, chapter 8, 1 Stat. 50.
In the very first Act of Congress, Congress addressed the status of rivers in U.S. territory west of the original thirteen colonies, saying, “the navigable waters leading into the Mississippi and Saint Lawrence, and the carrying places between the same, shall be common highways, and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other states that may be admitted into the confederacy, without any tax, impost, or duty therefor.”
(2) “Remain public highways:” Act of May 18, 1796, chapter 29, section 9, 1 Stat. 464, 468.
In 1796, in a law governing territory that would become future states, Congress again declared that “all the navigable rivers, creeks, and waters” within the territory “shall be deemed to be and remain public highways.”

________________________

Letter to NPS (National Park Service)

National Organization for Rivers
719.579.8759
www.nationalrivers.org
riverlaw@nationalrivers.org

October 3, 2013

An open letter to the directors of the National Park Service in Washington, D.C., and Grand Canyon, Arizona.

Dear National Park Service Directors:

We understand that the National Park Service has erected a barricade, manned by an armed ranger, to prevent the public from navigating the Colorado River through the Grand Canyon.

We also understand that a party of sixteen people, after having paid for and obtained a permit from the National Park Service to navigate the river, and driven from New Hampshire with their rafts and equipment, is waiting in the area for the National Park Service to re-open the river, and that other parties are likewise being denied their legal rights to navigate the Colorado River, the principle river in the southwestern United States.

The first act of the first Congress of the United States declared that the rivers of the nation must remain “forever free” to public navigation.(1) Later Congress again confirmed that rivers “shall be deemed to be and remain public highways.”(2) Early in our nation’s history the U.S. Supreme Court confirmed that rivers are “held in trust for the public” and cannot be closed to navigation.(3) The Court later confirmed that the government is the “guardian” of rivers, so that “free navigation is secured,”(4) and that government authority on navigable waters is subject to the public’s “paramount right of navigation.”(5) Later the Court reconfirmed that government authority on rivers is “subject to the rights which the public have in the navigation of such waters.”(6) In recent times the Court has reconfirmed public rights to navigate rivers in the western United States without permission or approval from the federal agency managing the surrounding lands.(7)

We are well aware that courts have upheld National Park Service authority to close waters within national parks to certain public uses when there are legitimate environmental reasons for doing so, consistent with the agencey’s mission to preserve national parks for future generations. This blanket closure of the Colorado River, however, does not fall within that category. There is no provision in federal law for agencies to close rivers to public navigation merely because they do not currently have the funding that they previously received.

Likewise, the fact that funding may be forthcoming within the next few days does not make this closure lawful today. The public has firm legal rights to navigate the Colorado River today, not just at some undetermined future time.

In other words, it is unlawful to hold public rights to navigate the Colorado River hostage to the political process now unfolding in Washington, D.C. The public has firm legal rights to navigate the Colorado River through the Grand Canyon regardless of when, or if, Congress renews funding for the National Park Service. The public’s legal rights to navigate the rivers of the United States are not dependent on Congressional funding of federal agencies, or lack thereof.

By its actions, the National Park Service is claiming that it does not have sufficient funding to allow the public to navigate the river—which would cost the agency nothing—yet it somehow does have sufficient funding to post an armed ranger to unlawfully prevent the public from navigating the river. This situation is absurd and indefensible.

Consequently, we urgently call on the National Park Service to immediately remove this unlawful barricade to public navigation of the Colorado River.

Sincerely,

Eric Leaper | Executive Director | National Organization for Rivers

cc: Members of Congress. The White House. National media.

1 “Forever free:” Northwest Ordinance of 1787, reenacted August 7, 1789, chapter 8, 1 Stat. 50.

2 “Be and remain public highways:” Act of May 18, 1796, chapter 29, section 9, 1 Stat. 464, 468.

3 “Held as a public trust:” Martin v. Waddell, 41 U.S. 367 (1842); Illinois Central v. Illinois, 146 U.S. 387 (1892).

4 “Guardians” of rivers: Pollard v. Hagan, 44 U.S. 212 (1845).

5 “Paramount right of navigation:” Weber v. Board of Harbor Commissioners, 85 U.S. 57 (1873).

6 “Subject to the rights which the public have:” Scranton v. Wheeler, 179 U.S. 141 (1900).

7 Without permission or approval: Montana v. United States, 450 U.S. 544 (1981).

Comments (12)

  1. janet:
    Oct 03, 2013 at 10:43 PM

    I can't believe how stupid this just got!!! Im so disgusted with that and I'm nowhere near colorado river! 3

  2. Robin Truitt:
    Oct 04, 2013 at 06:26 PM

    Thank you, Eric. I appreciate your citations and arguments for river access. As a former river ranger, currently scheduled to launch on the Colorado thru the Grand Canyon in a week, I will write EVERYBODY I can think of. Robin Truitt

  3. Roger Nott:
    Oct 04, 2013 at 10:29 PM

    Amen

  4. Marc W. McCord:
    Oct 07, 2013 at 12:30 PM

    It is unconscionable that the federal government would so willfully violate established law as affirmed by the US Supreme Court on multiple occasions dating back to 1787. This unlawful act of prohibiting access is unreasonable, illegal and unjustified.

    The BLM and NPS permit systems are illegal in that they tax river users for access to rivers after federal law already declared such fees and taxes to be illegal. The federal government has no right or authority to unilaterally decide to violate the US Constitution and federal laws enacted by the US Congress for the protection of the rights of the people.

    I demand an immediate cessation to the federal river permit systems so that Americans can freely navigate the waters of the United States without undue and illegal federal government interference.

  5. Jack :
    Oct 08, 2013 at 05:16 PM

    Keep up the good information. Hopefully this gets resolved quickly.

  6. Brent:
    Oct 09, 2013 at 01:59 AM

    The right to navigate rivers must be an inalienable right of all humans
    Turn around, Ranger Rick

  7. David Hablewitz:
    Oct 09, 2013 at 04:32 AM

    Excellent argument defending river users' rights. I will add a link to this article from my website as well. My website is setting new records for daily visitors as I post articles on this topic. I would also like to take an excerpt from your post and quote you on my site to increase awareness on this issue. My website is http://thenotesguyinseattle.com . Together we can make a difference.

  8. adminNOR:
    Oct 09, 2013 at 05:31 PM

    David, yes you may take an excerpt. Please include our organization name and our website, so people can follow up and find out additional information on the subject. Thank you for increasing awareness of this issue and that there is a solution/answer to it! Cheers.

  9. adminNOR:
    Oct 22, 2013 at 07:21 PM

    To wrap up this topic since the government shutdown has now been resolved, here's what the NOR Executive Director has to say as a reply to various messages and comments on the subject, enjoy!
    "How federal agencies describe their authority, in the Code of Federal Regulations and the National Park Service administrative rules, is subordinate to how the U.S. Supreme Court describes it. Broad-sounding language written by the agencies themselves cannot lawfully extend their authority beyond what is allowed by Supreme Court decisions. Since the beginnings of our nation, the Supreme Court has confirmed that rivers are permanently held in trust for the public, and cannot be closed by the owners or managers of the surrounding land. The most recent Supreme Court decision on the subject confirmed public rights to navigate noncommercially on western rivers despite the objections of the agency managing the surrounding land, the Department of the Interior, of which the Park Service is a part. (Montana v. United States, 450 U.S. 544, 1981.)

    Of course there can be exceptions to this principle. Federal courts have upheld agency closures or restrictions if they have a “rational basis.” However, they cannot be “arbitrary or capricious.” There has to be some rational, tangible, on-the-ground reason for the closure or restriction, and on rivers it has to be substantial enough to override the long-standing public right to navigate, as confirmed by the Supreme Court. It can involve public health, safety, environmental damage, or some other rational, tangible reason (safety and environment are not the only two possibilities.) However, it can’t be an irrational, absurd, despotic decision. The Department of the Interior claimed that the recent closure of the Lee’s Ferry put-in was necessary due to funding cuts, which was absurd because it cost more to post armed rangers to barricade the put-in than it would have cost to furlough the rangers and let people go down the river normally (which was what the same Department of
    the Interior, through the B.L.M., did further upstream in Desolation Canyon.) The closure was “vindictive shutdown theater,” as the National Review called such closures, so it was “arbitrary and capricious” and therefore unlawful. Our original “open letter” briefly explained this unlawfulness. We stand by that.
    Now that the government shutdown is over, it makes sense to turn to the legality of the long-term “partial closure” to noncommercial navigation that the Park Service has enforced since 1973. Since the Grand Canyon is a long trip through a remote canyon with limited camping space along the way, it necessarily involves people making advance reservations for the limited space on the river. Congress has confirmed that the Park Service cannot make people pay concessionaires in order to gain access in a timely manner. (16 U.S.C. Chapter 1, Subchapter I, section 3, regarding limits on grants to concessionaires.) Likewise, Supreme Court decisions confirm that the government cannot make people pay businesses for the right to navigate down navigable rivers. (Numerous cases cited in Public Rights on Rivers.) Consequently, public rights to gain timely access to the river through the Grand Canyon without paying businesses are doubly protected by federal law.

    When competent noncommercial river runners apply to reserve space on the river, the Park Service cannot deny their request unless there is some rational and lawful reason for doing so. If the space is already filled up at that time, with confirmed reservations previously made by other specific people, that’s a rational and lawful reason. If there is still vacant space on the river (either vacant space allocated to commercial operators or vacant space on the river generally) there is no rational and lawful reason to deny their request.

    Park Service officials may claim that their authority to withhold vacant space from noncommercial applicants was confirmed by federal courts in the Wilderness Public Rights Fund lawsuit in the late 1970s, or the more recent River Runners for Wilderness lawsuit. Both of those lawsuits claimed that the law requires the Park Service to do a demand study and adjust allocations accordingly. The law does not require a demand study, but it does require the Park Service to release vacant space to competent noncommercial applicants. Regarding how soon the Park Service must release space, since the commercial rafts are stored away and the guides have other jobs from about November to April each year, there is no “rational basis” for refusing to release vacant space to noncommercial applicants annually during that time, for the coming season. Not doing so is “arbitrary” and therefore unlawful.

    The National Organization for Rivers (NOR) is preparing handouts and posters to educate noncommercial river runners accordingly, and advise them on how to actually reserve the vacant space that they are lawfully entitled to reserve.

    The handouts and posters that are available so far talk about public rights on rivers generally. You can see them at nationalrivers.org.

    Supreme Court decisions are written so that the public can understand them and apply them. However, the Supreme Court is wasting ink and paper if you and I only consider what the Department of the Interior says about its own authority, rather than looking at what the Supreme Court says about it. After reading the Acts of Congress and Supreme Court decisions cited in NOR materials, if you still think NOR is overreaching or overselling, please cite the specific passage in NOR materials that you think is overreaching or overselling, and send a message showing how you would re-word it to riverlaw@nationalrivers.org. Thank you. Best wishes. – Eric Leaper."

  10. David Hablewitz:
    Oct 23, 2013 at 08:01 AM

    Compelling for access to the river. Keep in mind that the park effectively starts at the high water line, so doing any day hikes or exploring during a closure would be entering the park.

  11. Larry:
    Nov 24, 2013 at 12:39 AM

    Colorado and Wyoming are 2 of the worst offenders to these rights. You are equally likely to get arrested or shot at if you set foot on rivers flowing through private land there. How can we force them into alignment with lawful access to waterways?

  12. Vanessa Jones:
    Dec 02, 2013 at 07:01 PM

    Larry, yes this is an unfortunate current issue happening all over the country. For starters, read and share the river law handout/poster and have discussions with local authorities about how the public has rights to boat, fish, and walk along the banks of navigable rivers. Also, read and refer people who want more info on the subject to the book, "Public Rights on Rivers."
    You can read about how a fisherman had discussions with local authorities to have river rights acknowledged by visiting http://www.nationalrivers.org/a-fishermans-story.html. Since there's already substantial law in favor of public rights on rivers, there's no need to go to court for new law or confirmation. It's a matter of educating the public on what's been established by the US Supreme Court, Congress, and other federal law.

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